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David Lee Hewitt V. State of Utah : Brief of Appellee

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David Lee Hewitt V. State of Utah : Brief of Appellee Brigham Young University Law School BYU Law Digital Commons Utah Court of Appeals Briefs 1993 David Lee Hewitt .v State of Utah : Brief of Appellee Utah Court of Appeals Follow this and additional works at: https://digitalcommons.law.byu.edu/byu_ca1 Part of the Law Commons Original Brief Submitted to the Utah Court of Appeals; digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generated OCR, may contain errors. Jan Graham; Attorney General; James H. Beadles; Assistant Attorney General; Attorney for Appellee. David Lee Hewitt; Utah State Prison; Appearing Pro Se. Recommended Citation Brief of Appellee, Hewitt .v Utah, No. 930035 (Utah Court of Appeals, 1993). https://digitalcommons.law.byu.edu/byu_ca1/3924 This Brief of Appellee is brought to you for free and open access by BYU Law Digital Commons. It has been accepted for inclusion in Utah Court of Appeals Briefs by an authorized administrator of BYU Law Digital Commons. Policies regarding these Utah briefs are available at http://digitalcommons.law.byu.edu/utah_court_briefs/policies.html. Please contact the Repository Manager at [email protected] with questions or feedback. UTAH COURT OF APPEALS UTAH DOCUMENT KFU 50 .A10 IN THE tJTAH C0URT 0F DOCKET NO APPEALS DAVID LEE HEWITT, : Petitioner and Appellant, s: Case No, 930035-CA V. J : Priority No, 3 STATE OF UTAH, s Respondent and Appellee. ; BRIEF OF APPELLEE APPEAL FROM DENIAL OF PETITION FOR EXTRAORDINARY WRIT IN THE THIRD JUDICIAL DISTRICT COURT IN AND FOR SALT LAKE COUNTY, STATE OF UTAH, THE HONORABLE MICHAEL J. MURPHY, PRESIDING DAVID LEE HEWITT JAN GRAHAM (1231) PRO SE Utah Attorney General P.O. Box 250 JAMES H. BEADLES .(5250) Draper, Utah 84020 Assistant Attorney General 330 South 300 East Salt Lake City, Utah 84111-2525 Telephone: (801) 575-1600 APPEARING PRO SE ATTORNEY FOR APPELLEE IN THE UTAH COURT OF APPEALS DAVID LEE HEWITT, Petitioner and Appellant, i Case No. 930035-CA V. J * Priority No. 3 STATE OF UTAH, j Respondent and Appellee, : BRIEF OF APPELLEE APPEAL FROM DENIAL OF PETITION FOR EXTRAORDINARY WRIT IN THE THIRD JUDICIAL DISTRICT COURT IN AND FOR SALT LAKE COUNTY, STATE OF UTAH, THE HONORABLE MICHAEL J. MURPHY, PRESIDING DAVID LEE HEWITT JAN GRAHAM (1231) PRO SE Utah Attorney General P.O. Box 250 JAMES H. BEADLES .(5250) Draper, Utah 84020 Assistant Attorney General 330 South 300 East Salt Lake City, Utah 84111-2525 Telephone: (801) 575-1600 APPEARING PRO SE ATTORNEY FOR APPELLEE TABLE Of CONTENT!. TABLE "•• MITUU ' "~ • JURISDICTION AND NA-] .-~ C-J <'f< >CEEDINGS IS! PRESENTEr STANDARD U1 Ax « . ^EVIE 2 CONSTITUTIONAL PROVIb; . ... I STATEMEN I STATEME'.. A ir 4 SUMMARY OF ARGUMENT \ ARGUMENT 1 POINT I THE TRIAL COURT CORRECTLY DENIED THE PETITION THE GROUNDS OF WAIVER AND FAILURE TO PURSUE A DIRECT APPEAL ... .... 7 POINT II BECAUSE THE DISTRICT COURT PROPERLY DISMISSED PETITION DUE TO WAIVER AND FAILURE TO PURSUE A DIRECT APPEAL, THIS COURT DOES NOT NEED TO REACH PETITIONER'S CLAIMS ABOUT THE HABEAS CORPUS STATUTE OF LIMITATIONS 9 I'OINT I I I THE CONSTITUTIONAL PROHIBITION ON THE SUSPENSION OF HABEAS CORPUS APPLIES ONLY TO HABEAS CORPUS AS IT WAS UNDERSTOOD BY THE FRAMERS OF THE CONSTITUTION 10 POINT IV THE OTHER POINTS PETITIONER RAISES IN HIS BRIEF WERE NOT RAISED IN THE DISTRICT COURT AND THEREFORE NOT PRESERVED FOR APPEAL .... 14 15 ADDENDA CONS1 • S ADrr \ JUDGMENT, SENTENCE ANb ,'*'.*•. I'E • N ADD A B L PETITION FOR WRIT OF HABEAS CORPUS ADDENDUM C AMENDED PETITION FOR WRIT OF HABEAS CORPUS ADDENDUM D MOTION TO DISMISS ADDENDUM E RESPONSE TO RESPONDENT'S MOTION TO DISMISS ADDENDUM F SUMMARY DECISION AND ORDER ADDENDUM G UTAH CASES ON COMMON LAW HABEAS CORPUS ADDENDUM H People v. Robinson. 833 P.2d 832 (Col. App. 1992) and Potts v. State. 833, S.W.2d 60 (Tenn. 1992) ADDENDUM I ii TABLE OF AUTHORITIES CASES CITED Areson v. Pincock. 62 Utah 527, 220 P. 503 (1923) ... 10 Brown v. Turner. 21 Utah 2d 96, 440 P.2d 968 (1968) . 8 Bundv v. DeLand. 763 P.2d 803 (Utah 1988) 2 In re Clark. 28 Utah 268, 78 P. 475 (1904) 11 Codianna v. Morris. 660 P.2d 1101 (Utah 1983) .... 8 Drummond v. Union Pacific R.R.. Ill Utah 289, 177 P.2d 908 (1947) . 15 Hatch v. Deland. 790 P.2d 49 (Utah 1990) 11 Ex Parte Hays, 15 Utah 77, 47 P. 612 (1897) . 11, 13 Hurst v. Cook, 777 P.2d 1029 (Utah 1989) 11 In re Mauahan, 6 Utah 167, 21 P. 1088 (1889) .... 11 People v. Robinson. 833 P.2d 832 (Colo. App. 1992), . .13 Potts v. State. 833 S.W.2d 60 (Tenn. 1992) 12, 13 Smith v. Cook, 803 P.2d 788 (Utah 1990) 9 Standard Federal Savings and Loan Associate v. Kirkbride, 821 P.2d 1136 (Utah 1991) 15 State ex rel. Newsom v. Henderson. 221 Tenn. 24, 424 S.W.2d 186 (1968) 13 State v. Anderson. 701 P.2d 1099 (Utah 1985) .... 9 State v. Archambeau, 820 P.2d 920 (Utah App. 1991) ... 15 State v. Johnson. 635 P.2d 36 (Utah 1981) 12 Stewart v. State, 830 P.2d 306 (Utah App. 1992) ... 2 Stillev v. Tinslev. 153 Colo. 66, 385 P.2d 677 (1963) . 13 iii Swain v. Presslev. 430 U.S. 372 ... .14 Wickham v. Fisher, 629 P.2d 896 (Utah 1981) . 11 Winnovich v. Emery, 33 Utah 345, 93 P. 988 (1908) . .10, 13 Ziecler v. Milliken, 583 P.2d 1175 (Utah 1978) .... 11 CONSTITUTIONAL PROVISION, STATUTES AND RULES Utah Code Ann. § 78-12-31.1 (1992) 1, 2 Utah Code Ann. § 78-2a-3 (2)(g) (Supp. 1992) .... 1 Utah Const, art. V 2, 12 Utah Const, art. I, §5 2 Utah Const, art. I, § 11 6 Utah Const, art. I, § 5 9 Utah R. Civ. P. 65B (1992) 2 MISCELLANEOUS Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 170 (1970) 14 Oaks, Legal History in the High Court — Habeas Corpus. 64 Mich. L. Rev. 451, 468 (1966) 11 Story, Commentaries on the Constitution of the United States, at 212 (Little, Brown & Company 1891) ... 11 iv IN THE UTAH COURT OF APPEALS DAVID LEE HEWITT, i Petitioner and Appellant, ! Case No. 930035-CA V. J : Priority No. 3 STATE OF UTAH, i Respondent and Appellee. ; BRIEF OF APPELLEE JURISDICTION AND NATURE OF PROCEEDINGS This is an appeal from the district court's denial of a petition for extraordinary writ brought under Rule 65B, Utah Rules of Civil Procedure. This appeal is taken from a decision of the district court involving a challenge to petitioner's sentence for a second degree felony conviction; therefore, original appellate jurisdiction lies with the Utah Court of Appeals under Utah Code Ann. § 78-2a-3 (2)(g) (Supp. 1992). ISSUES PRESENTED UPON APPEAL 1. Did the district court correctly conclude that petitioner waived his complaints when he failed to raise them at the sentencing hearing and on direct appeal? 2. Does Utah Code Ann. § 78-12-31.1 (1992), the habeas corpus statute of limitations, unconstitutionally "suspend" the privilege of the writ of habeas corpus and, therefore, violate article I, section 5 of the Utah Constitution. 1 STANDARD OF APPELLATE REVIEW On appeal from denial of a petition for post-conviction relief, the appellate court "'survey[s] the record in the light most favorable to the findings and judgment; and [it] will not reverse if there is a reasonable basis therein to support the trial court's refusal to be convinced that the writ should be granted,'" Bundv v. DeLand, 763 P. 2d 803, 805 (Utah 1988) (quoting Velasquez v. Pratt, 21 Utah 2d 229, 232, 443 P.2d 1020, 1022 (1967)). When the denial includes rulings on questions of law, the-trial court's legal conclusions are reviewed de novo. Stewart v. State, 830 P. 2d 306, 308-09 (Utah App. 1992). A trial court's findings of fact will be disturbed only if clearly erroneous. Id. CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES The following provisions are included in Addendum A to this brief. Other relevant pleadings and documents, including the summary decision and order of the trial court, are also included in the Addenda. Utah Const, art. I, § 5. Utah Const, art. V. Utah Code Ann. § 78-12-31.1 Utah R. Civ. P. 65B (1992). STATEMENT OF THE CASE This case arises from petitioner's sentencing on February 4, 1991 before Third District Court Judge Michael Murphy for the crime of retail theft, a second degree felony. Judge Murphy sentenced Petitioner to a term of imprisonment for not less than one nor more 2 than fifteen years. (Judgment, Sentence (Commitment), attached as Addendum B.) On February 19, 1992, more than one year after receiving his sentence, petitioner filed a petition for extraordinary relief with the Third District Court. (R. at 2-5; Attached as Addendum C, Petition for Writ of Habeas Corpus and Post Conviction Relief, Case No. 920900909, Third District Court.) In his petition, petitioner claimed that the sentencing court had received and acted upon erroneous and misleading information in the pre-sentence investigation report (PSI). (R. at 3; Addendum C.) Further, petitioner also alleged that the Adult Probation & Parole (AP&P) agent who had written the report was prejudiced and biased and that the court had failed to ask petitioner during sentencing if he and his counsel had reviewed and discussed the PSI. Petitioner later filed an amended petition, which did not substantively change the nature of his allegations. (R. at 58-61; Attached as Addendum D, Amended Petition for Writ of Habeas Corpus and Post Conviction Relief, Case No.
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